from the transparency! dept

You might recall that right before the FCC voted to kill net neutrality at Verizon's behest, the agency thought it would be a hoot to joke about the agency's "collusion" with Verizon at a telecom industry gala. The lame joke was a tone-deaf attempt to mock very legitimate concerns that Pai, a former Verizon regulatory lawyer, is far too close to the industry he's supposed to be regulating. The FCC even went so far as to include a little video featuring Verizon executives, who chortled about their plans to install Pai as a "puppet" leader at the agency. Hilarious.

While the audience of policy wonks and lobbyists giggled, the whole thing was tone deaf and idiotic from stem to stern. Especially given the fact that Pai's policies have been nothing short of a Verizon wish list, whether that involves protecting Verizon's monopoly over business data services (BDS), or the efforts to undermine any attempts to hold Verizon accountable for repeated privacy violations. Much like the other lame video Pai circulated at the time to make light of consumer outrage, it only served to highlight how viciously out of touch this FCC is with the public it's supposed to be looking out for.

Gizmodo recently filed a FOIA request to obtain any communications between the FCC and Verizon regarding the creation of the video, arguing the records were well within the public interest given concerns over Pai's cozy relationship with the companies he's supposed to be holding accountable. But Gizmodo says the FCC refused the request under Exemption 5 of the FOIA (Deliberative Process Privilege). While the request revealed around a dozen pages of e-mails between the FCC and Verizon, the FCC refuses to release them, arguing they could harm the ability of the agency to do its job (read: kiss Verizon's ass):

"At its own discretion, the Federal Communications Commission has chosen to block the release of records related to a video produced last year in which FCC Chairman Ajit Pai and a Verizon executive joke about installing a “Verizon puppet” as head of the FCC. In a letter to Gizmodo last week, the agency said it was withholding the records from the public in order to prevent harm to the agency—an excuse experts say is a flagrant attempt to skirt federal transparency law.

"To argue that this video amounts to the same kind of deliberative process that goes on behind the scenes in terms of an agency deciding an official policy on a topic, or what actions it’s going to take, is absurd,” Marshall said. “The deliberative process is frequently used to withhold embarrassing information or inconvenient information. I have no idea how a draft of a skit that was supposed to be funny would impair the FCC’s decision-making process on anything, except on, I guess, maybe future skits."

In short the FCC was cocky enough to think that mocking Verizon collusion concerns was somehow a good idea, yet now doesn't want anybody seeing its communications with Verizon executives. The agency pretty clearly is worried the e-mails could be embarrassing or potentially harm the agency's chances against the wall of lawsuits headed its direction for ignoring the public interest.

Remember that Ajit Pai has routinely crowed about how "transparent" his FCC would be. Yet just one year in, Pai's agency is already facing numerous lawsuits for refusing to disclose conversations with ISP lobbyists about the plan to kill net neutrality, refusing to disclose net neutrality complaints filed with the agency, refusing to be transparent about a DDoS attack the FCC apparently concocted to downplay the "John Oliver effect," and for ignoring FOIA requests related to its failure to police website comment fraud during the public comment period (they're also blocking a law enforcement investigation into that same issue).

In short, whatever Pai's private definitions of both "transparency" and "joke" are, you sure as hell won't find them in the dictionary.

The EFF is seeking information not included in the Powerpoint presentation already produced by the DEA. It's looking for records on court cases where evidence derived from the program was submitted, communications between the government and AT&T concerning the program, communications between government agencies about the Hemisphere program, and Congressional briefings related to the side-by-side surveillance effort.

The government has refused to turn over much of what's been requested for a variety of reasons, the main one being infamous FOIA exemption b(5). The government has other reasons for withholding information, but this is its favorite. The court, however, finds that most of its arguments amount to little more than "because." From the opinion [PDF]:

Ultimately, the Government's declaration is too vague: it does not indicate even generally what sorts of legal issues are presented in these e-mails, nor does not explain what “features” of the Hemisphere program are at issue. That the communications were between an attorney and agency employees does not establish the documents are protected under the attorney client privilege; without more about what “features” or “legal issues” are discussed or why they might be confidential in nature, the Government has not raised enough facts to show that Document 1 may be protected by the privilege.

As for another disputed document, the court has this to say:

The Government is essentially asking the Court to presume that because it uses the word “subpoenas” and states that attorneys wrote or received emails, these documents therefore reveal attorney-client communications of a confidential nature. Merely reiterating the elements of the privilege, however, does not satisfy the Government's burden of establishing the privilege applies to this document.

Yet another disputed document:

[T]he Government does not articulate why this information is confidential or contains legal advice. While it asserts that this document contains “confidential legal advice,” again, this merely states the element without explaining the basis of that confidentiality.

The review of documents concludes with the court pointing out that the government's sole justification for its bare minimum explanations works against it:

Finally, while the Government argues its generalized descriptions are sufficiently specific to show the documents contain “confidential legal advice,” it relies only on cases that demonstrate how its support in this case is lacking. [...] The Court is not asking the Government to make a herculean effort, merely something beyond regurgitation of the elements.

The court remains less than impressed with the government's lack of effort throughout the remainder of the opinion. It's as if the government assumed the court would rubber-stamp its bare-bones assertions.

[T]he Government makes no further reference to any current or foreseeable litigation in either its supporting declarations or Vaughn Index or provide other context that would allow the Court make a de novo review of the Government's work product assertions. Again, the Government cannot satisfy its burden of proof by relying on a mere recitation of the elements.

[...]

Nor does the Government meet its burden merely by referring to law enforcement efforts.

[...]

The Government merely recites the elements necessary to establish the privilege, but it does not explain why they are met, such as explaining why these particular documents relate to some anticipated litigation.

[...]

[T]he Government does not explain how the disclosure of these documents would affect its deliberative process by preventing or discouraging DEA employees or affiliates from giving their honest opinions, recommendations, or suggestions on how to develop policy decisions.

[...]

None of the Government's evidence suggests that exposing these documents would interfere with law enforcement proceedings.

The court also finds the government cannot withhold information related to cities Hemisphere was deployed in or agencies involved under FOIA exemptions. As the court sees it, the fearful assertions made by the government have no basis in observed reality.

The Government asserts this information “could be used by criminals to disrupt law enforcement operations or obtain unauthorized access to information about such operations.” But the Government does not explain how criminals could do this by using information about the cities and states where Hemisphere. EFF also notes that the public already knows that Hemisphere has regional centers in Atlanta, Houston, and Los Angeles, but the Government presents no evidence suggesting criminals have used this publicly available information to disrupt law enforcement operations or obtain unauthorized access to information.

The same goes for the names of the telecommunications companies the DEA worked in concert with to obtain telephone records.

[T]he Government asserts criminals could use this information to “tailor or adapt their activities to evade apprehension,” or “to attack facilities involved in the Hemisphere program.” In response, EFF argues the public has known for two and a half years—that is, since The New York Times‟ 2013 article on it—that AT&T supports Hemisphere, and the Government has not shown or even argued that criminals have ever attempted to use this information to evade or disrupt Hemisphere.

The Court agrees with EFF that the Government has not provided facts showing why it is likely criminals would use the identities of the companies that are instrumental to Hemisphere to evade or attack Hemisphere-related facilities.

The next step is an in camera review of the documents by the court to determine whether or not there's anything in these documents the government is justified in withholding. So far, the court appears unconvinced the government is engaged in anything more than opacity for opacity's sake. If the review goes as badly for the government as its FOIA lawsuit defense has, a lot more information on the Hemisphere program should be headed our way.

from the whatever-the-CIA-said-about-torturing-folks-is-between-the-CIA-and-the-CIA dept

District Court Judge James Boasberg ruled against a journalist on Tuesday who had tried to uncover the classified documents — known as the Panetta Review, because they was completed under orders from former agency Director Leon Panetta — under the Freedom of Information Act (FOIA).

The CIA had used “sound” reasoning in keeping the documents secret, Boasberg decided in a 19-page judgment, preventing it from making its way to the public.

The journalist in question is every secretive agency's side-thorn, Jason Leopold, who sued the CIA one day after it passed the response deadline. And now this attempt to pry more torture-related documents out of the CIA's hands has hit a dead end. Judge Boasberg agreed that the overbroad exemptions cited are (unsurprisingly) broad enough to cover the CIA's assertion that the 40 memos comprising the Panetta Review must be withheld in full.

In the end, requiring disclosure of the Reviews would cause the sort of harm that the deliberative-process privilege was designed to prevent – i.e., inhibiting frank and open communications among agency personnel… Had the SRT known that the Reviews could become public, its members would likely have been tempted to highlight only the information that would paint the agency’s prior actions in a positive light and to avoid calling attention to information that could have embarrassed the agency or its officials. Protecting the agency’s withholdings in this case is thus consistent with the purposes of this exemption…

The Court, in sum, concludes that the Reviews are properly withheld under Exemption 5’s deliberative-process privilege. It further agrees that they may be withheld in full. While FOIA requires agencies to release “[a]ny reasonably segregable portion of a record,” 5 U.S.C. § 552(b), it is clear that there are no such portions here. As the agency attests, and as the preceding discussion makes clear, “[t]he entire documents are pre-decisional, deliberative drafts . . . .” Lutz Decl., ¶ 26. Because “the selection of which facts to include [wa]s part and parcel of the deliberative assessment,” no portions can be severed without exposing the deliberative process itself.

Two interesting things to note about the Panetta Review and this particular case.

First, the CIA seems to be bolstering its FOIA exemption b(5) claims by designating documents as "draft" or "deliberative," no matter what their actual purpose is. In its supporting declaration filed in this lawsuit, it deployed circular reasoning declaring drafts and deliberative documents are drafts and deliberative documents because they are clearly marked as such by the CIA.

In a court filing last month as part of a Freedom of Information Act lawsuit, a C.I.A. officer said that the review had been stopped abruptly in 2010, had not covered all of the documents the agency had given to the committee and “had not been formally reviewed or relied upon by the C.I.A.’s senior leadership.”

“Each document is stamped ‘DELIBERATIVE PROCESS PRIVILEGED DOCUMENT’ at the top of every page, and most of the documents are marked ‘DRAFT’ on every page as well,” wrote the C.I.A. officer, Martha M. Lutz.

The CIA's internal document designations seem to bear some resemblance to the NYPD's use of its "SECRET" stamp -- which is deployed arbitrarily and without oversight to declare certain documents out of the reach of Freedom of Information Law (FOIL) requests. If the CIA feels exemption b(5) gives it the best chance to keep documents out of the hands of journalists like Jason Leopold. it can slap these designations on as many papers as possible and mention its predetermination in FOIA lawsuit declarations.

Second, Boasberg's refusal to challenge even a single exemption assertion by the CIA isn't particularly good news, considering his recent appointment to the FISA court. While he has pushed back on government secrecy in the past, he's also been just as likely to grant its wishes. Considering he's replacing FISA Judge Reggie Walton -- one of the few FISA judges to openly question surveillance tactics and hold the NSA accountable for its abuses -- this latest decision seems to indicate his appointment is a downgrade in terms of government accountability.

from the a-bit-more-patch-than-fix,-but-still... dept

If anything useful has been redacted from documents obtained with by a FOIA request, chances are the b(5) exemption has been invoked. Theoretically narrow in scope, the exemption has expanded to cover everything from a historical recounting of the CIA's involvement in the Bay of Pigs to someone's hand-scrawled commentary ("What a bunch of crap!") on a bill asking for Pakistan to be designated as a state sponsor of terrorism.

Here's the entirety of the exemption according to FOIA statutes.

Inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency

The reality of the situation is that nearly every agency has deployed the exemption to redact information at one point or another. Almost prophetically, the b(5) exemption claims the withheld information can only be released to "agencies in litigation" with the withholding party. And there are certainly plenty of "agencies" engaged in litigation with these government entities, albeit mainly in the form of FOIA lawsuits.

Senate Judiciary Committee Chairman Leahy and Cornyn, the ranking Judiciary Republican, introduced the FOIA Improvement Act of 2014, which would strengthen Obama administration transparency mandates and reform one of the most abused FOIA exemptions.

President Barack Obama and U.S. Attorney General Eric Holder directed federal agencies in 2009 to update their FOIA guidelines and operate with a presumption of openness. However, many agencies ignored the directive.

The bill would codify the administration's reform directives and force responsive agencies to limit use of the b(5) exemption to only information that would cause "foreseeable harm" if disclosed. Granted, that still leaves government agencies with plenty of room to maneuver, but it should trim down the number of b(5) redactions applied to documents like a Presidential Policy Directive ordering the State Department to be more transparent.

On the indisputable plus side, documents over 25 years old are no longer subject to this exemption, meaning long-withheld documents like the previously mentioned Bay of Pigs recounting will no longer be withheld for bogus "deliberative" reasons.

If this bill passes the Senate, it will likely be merged with a House FOIA reform bill being shepherded by Darrell Issa and Elijah Cummings. From that point, it will need to emerge mostly unscathed from the sausage-making on its way to the President. If it does survive intact, longtime FOIA offenders may have to find new reasons to apply black bars and withhold pages. Hopefully, this will cut down on the number of FOIA responses containing nothing but page-after-full-page of redactions.